M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 (1992)

Docket Number:21763

M.(K.) v. M.(H.), [1992] 3

S.C.R. 6

K.M. Appellant v.

H.M. Respondent and

Women's Legal Education and Action Fund Intervener

Indexed as: M.(K.) v. M.(H.)

File No.: 21763.

1991: November 8; 1992: October 29.

Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

Limitation of actions - Torts - Assault and battery - Incest - Woman bringing action against father for damages for incest - Whether or not action limited by Limitations Act - Application of the reasonable discoverability principle - Whether or not incest a separate and distinct tort - Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.

Limitation of actions - Equity - Fiduciary relationship - Parent-child - Woman bringing action against father for incest - Whether incest constitutes a breach of fiduciary duty by a parent - Whether limitation period applicable and whether the defence of laches applies.

Limitation of actions - Fraudulent concealment - Incest - Whether a limitation period in an incest action is postponed by defendant's fraudulent concealment.

Appellant was the victim of incest. It began with fondling by her father and, after the age of ten or eleven, involved regular sexual intercourse with him. Her cooperation and silence were elicited by various threats which appellant had good reason to take seriously. She was also rewarded with pop, potato chips and money. In time, respondent gave her the responsibility for initiating sexual contact. Appellant tried several times to disclose this abuse to no avail. At the age of ten or eleven appellant tried to tell her mother and at age sixteen she told a high school guidance counsellor, who referred her to a school psychologist. Her father had her recant both to the psychologist and to a lawyer for the local school board. Other disclosures made after leaving home came to nothing until she finally attended meetings of a self-help group for incest victims and realized that her psychological problems as an adult were caused by the incest. With therapy appellant also came to realize that it was her father rather than herself who was at fault. Professional opinion was that appellant was unable to assess her situation rationally until she entered this therapy.

In 1985, at the age of 28, appellant sued her father for damages arising from the incest and for breach of a parent's fiduciary duty. A jury found that the respondent had sexually assaulted his daughter, and assessed tort damages of $50,000. The trial judge ruled, however, that the action was barred by s. 45 of the Limitations Act. The Ontario Court of Appeal dismissed an appeal from the trial judge's ruling.

At issue here are: (1) whether incest is a separate and distinct tort not subject to any limitation period; (2) whether incest constitutes a breach of fiduciary duty by a parent not subject to any limitation period; and (3) if a limitation period applies, whether it is postponed by the reasonable discoverability principle.

Held: The appeal should be allowed.

Per La Forest, Gonthier, Cory and Iacobucci JJ.: Incest is both a tortious assault and a breach of fiduciary duty. The tort claim, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and the plaintiff's injuries. In this case, that discovery occurred only when the appellant entered therapy, and the lawsuit was commenced promptly thereafter. The time for bringing a claim for breach of a fiduciary duty is not limited by statute in Ontario, and this breach therefore stands along with the tort claim as a basis for recovery by the appellant. Incest does not constitute a distinct tort, separate and apart from the intentional tort of assault and battery, and the continuous nature of the tort need not be decided here.

Incest unquestionably constitutes an assault and battery, and based on the jury's verdict, all of the requisite elements of the test were proved. Assault and battery, however, can only serve as a crude legal description of incest; the law must also take account of the unique and complex nature of incestuous abuse and its consequential harms. Various psychological and emotional harms immediately beset the victim of incest, but much of the damage is latent and extremely debilitating. When the damages begin to become apparent, the causal connection between the incestuous activity and present psychological injuries is often unknown to the victim. A statute of limitations provides little incentive for an incest victim to prosecute his or her action in a timely fashion if the victim has been rendered psychologically incapable of recognizing that a cause of action exists.

The reasonable discoverability rule, as developed in previous decisions of this Court, should be applied and the limitations period should begin to run only when the plaintiff has a substantial awareness of the harm and its likely cause. The causal link between fault and damage is an important fact, essential to the formulation of the right of action, that is often missing in cases of incest. In making this link, the plaintiff must have an awareness of the wrongfulness of the defendant's incestuous conduct. Battery consists of wrongful touching, and the plaintiff must discover the wrongfulness of the contact and its consequential effects before the cause of action accrues. The issue properly turns on the question of when the victim becomes fully cognizant of who bears the responsibility for his or her childhood abuse, for it is then that the victim realizes the nature of the wrong suffered. As such, responsibility plays a pivotal role in both the genesis and the cessation of the harms caused by incestuous abuse.

The close connection between therapy and the shifting of responsibility is typical in incest cases and creates a presumption that incest victims only discover the necessary connection between their injuries and the wrong done to them (thus discovering their cause of action) during some form of psychotherapy. If the evidence in a particular case is consistent with the typical features of "post-incest" syndrome, then the presumption will arise. The defendant can refute the presumption by leading evidence showing that the plaintiff appreciated the causal link between the harm and its origin without the benefit of therapy.

In this case, the trial judge did not address the critical issue of when appellant discovered her cause of action, in the sense of having a substantial awareness of the harm and its likely cause, and made no finding that appellant had made the necessary connection at any time before entering therapy. Moreover, the presumption outlined above should be applied here. Appellant was a typical incest survivor, and both presumptively and in fact did not make the causative link between her injuries and childhood history until she received therapeutic assistance. Evidence to the contrary was entirely speculative. In the result, the limitations period did not begin to run against her until she received therapy, and this action was commenced before that period expired.

Appellant argued that the limitation period was also tolled by respondent's fraudulent concealment of her cause of action. This point need not be decided, but some comment on the law of fraudulent concealment is provided for the sake of clarity. Fraudulent concealment (when applicable) will toll the limitation of both common law and equitable claims until the time the plaintiff can reasonably discover her cause of action. Incest cases may be amenable to the application of fraudulent concealment as an answer to a limitations defence; incest takes place in a climate of secrecy, and the victim's silence is attained through various insidious measures which condition the victim to conceal the wrong from herself. The fact that the abuser is a trusted family authority figure in and of itself masks the wrongfulness of the conduct in the child's eyes, thus fraudulently concealing the cause of action.

Incest also constitutes a breach of the fiduciary relationship between parent and child. Ontario's Limitations Act does not limit actions against a fiduciary, although certain equitable doctrines may bar a claim because of delay. The courts below did not consider appellant's claim in equity, but the issue should now be addressed; a breach of fiduciary duty cannot be automatically overlooked in favour of concurrent common law claims. The relationship between parent and child is fiduciary in nature, and the sexual assault of one's child is a grievous breach of the obligations arising from that relationship. Equity has imposed fiduciary obligations on parents in contexts other than incest, and a duty to refrain from incestuous assaults on one's child is an obvious addition to this category. The three indicia of a fiduciary relationship are all evident in this case, and the non-economic interests of an incest victim are particularly susceptible to protection from the law of equity.

The plaintiff's delay in bringing her claim for breach of fiduciary duty raises three potential hurdles that may bar her claim: limitations legislation, the application of that legislation by analogy, and the equitable doctrine of laches. All of these hurdles, however, are overcome in this case. First Ontario's Limitations Act applies only to a closed list of enumerated causes of action which does not include fiduciary obligations. Equity in some cases will operate by analogy and adopt a statutory limitation period that does not otherwise expressly apply, but this is not such a case. Equity has rarely limited a claim by analogy when the action falls within its exclusive jurisdiction, as in this claim for breach of fiduciary duty. Moreover, even if it is appropriate to draw an analogy to a common law action, the analogy will be governed by the parameters of the equitable doctrine of laches. Finally, any analogy would be nullified...

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